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July 9, 2019

Single Judge Application; examiner failed to address the veteran’s competent lay statement; impermissibly provided a rationale based solely on a lack of objective evidence; Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006); medical opinions inadequate due to the examiner’s reliance solely on the absence of objective documentation without consideration of a claimant’s lay statements; Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007);

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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-0291

NYIKA A.STERN,APPELLANT,V.ROBERT L.WILKIE,SECRETARY OF VETERANS AFFAIRS,APPELLEE.

Before BARTLEY, Judge.

MEMORANDUMDECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

BARTLEY, Judge: Veteran Nyika A. Stern appeals through counsel a November 8, 2017, Board of Veterans’ Appeals (Board) decision denying an evaluation in excess of 20% for service-connected lumbosacral strain, entitlement to service connection for a left ankle disability, and entitlement to a total disability evaluation based on individual unemployability (TDIU). Record (R.) at 2-16.1For the reasons that follow, the Court will set aside these portions of the November 2017Board decision and remand the matters forfurther development andreadjudication consistent with this decision. The balance of the appeal will be dismissed.I. FACTSMr. Sternserved on active duty in the U.S. Army from November 1995 to December 1999. R. at 1122. Upon separation, he filed claims for entitlement to service connection for, inter alia, bilateral ankle disability and low back disability, R. at 2711-14, which a VA regional office (RO) 1The Board also denied entitlement to service connection for bilateral leg disability and bilateral foot disability, including as secondary to service-connected disabilities. R. at 6-7.Because Mr. Sternhas not challenged these portionsof the Board decision, the appeal as to those matterswill be dismissed. See Pederson v. McDonald, 27Vet.App. 276, 281-85 (2015) (en banc) (declining to review the merits of an issue not argued on appeal and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same).2denied in January 2000, R. at 2704-09. Inan April 2002 rating decision, the RO granted service connection for lumbosacral strain, assigning a 10% evaluation, and denied service connection for a left ankle condition. R. at 2644-55. In September 2007, Mr. Stern applied for an increased evaluation for service-connected lumbosacral strain andreopening of the claim for service connection for left ankle condition.R. at 2212-15.A March 2008VA back examination noted that the veteran reported low back flare-upsat leastonce or twice aweek,and as often as three to four times a day,that last for hours. R. at 370. The examiner noted that the flare-ups cause “moderate additional limitation of motion and moderate functional impairment” and that the veteran “does not tolerate” excessive, repetitive, or prolonged use of the low back or prolonged standing or walking. Id.In a May 2008 rating decision, the RO denied an increased evaluation and determined that the veteran failed to submit new and material evidence to reopen his left ankle claim. R. at 2457-71. Mr. Sterns filed a timely Notice of Disagreement (NOD), R. at 2439-44, and the RO issued a Statement of the Case, R. at 2353-84. In a September 2008 decision review officer decision, the RO granted a 20% evaluation for lumbosacral strain,effective January 30, 2008. R. at 2400-05. The veteran timely perfected his appeal to the Board. R. at 2281-82. In an April 2009VA examination,the veteran again noted flare-ups during which “he has further limitation in active range of motion.” R. at 339. The examiner noted that “[d]uring flare-ups of strain [Mr. Stern] may have further decrease in active range of motion of the back . . . but the degree will depend on how much discomfort [he] feels at that time.” R. at 441-42. In August 2011, the Boardissued a decision reopening Mr. Stern’s left ankle disability claim and remandingto obtain an examination and linkage opinion. R. at 1897. The Board also remanded the claim for an increased evaluation for lumbosacral strain to obtain additional treatmentrecords and VA examination to address Mr. Stern’s statement that his condition had become more severe in that, after repetitive use, his range of motion was “significantly” reduced due to pain, soreness, and stiffness and he had increased radiation of pain to his hips, groin, legs, and feet. R. at 1898.In a January 2015ankle examination, a VA examiner noted Mr. Stern’s reports of “twisting his ankle since the military,” R. at 185, and opined that his left anklecondition was less likely than not incurred in or caused by service becausethere was “[n]o chronicity or continuity while on active duty,” R. at 182. In a VA back examination the same month, the examiner noted that the 3examination was being conducted during a flare-up, but that she was unable to say without mere speculation whether the flare-up significantly limited functional ability because of the veteran’s “stiffness and pain.” R. at 194.In June 2016, Mr. Stern requested entitlement to TDIU. R. at 1463-64. In anApril 2017 VAbackexamination, he reported severe flare-ups that occurred weekly lasting from 30 minutes to hours, constant low back pain, and intermittent back spasms, but in response to the examiner’s direct questionas to whether he had “functional loss” or “functional impairment” due to his back condition he answered “no.”R. at 794. The examiner determined that the examination was not conducted during a flare-up, the examination results were neither medically consistent nor inconsistent with the veteran’s statements describing functional loss during a flare-up, and that she was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability because “[t]here is no conceptual or empirical basis for making such a determination without directly observing function under the flare[-]up condition.” R. at 796. In November 2017, the Board issued its decision on appeal denying an evaluation in excess of 20% disabling for lumbosacral strainand denying entitlement to service connection for a left ankle disability and TDIU. R. at 2-16. The Boarddetermined that the VA medical examinations and opinions were adequate and the duty to assist satisfied. R. at 6. As to lumbosacral strain, the Board found that the evidence did not support an increased evaluation or staged ratings. R. at 13. As to the left ankle disability, the Board found that the January 2015 medical opinion was probative and contained sufficient rationale to support the examiner’s conclusion that the condition was less likely than not incurred in or caused by service.R. at 7.This timely appeal followed.II. JURISDICTION AND STANDARD OF REVIEWMr. Stern’sappeal is timely and the Court has jurisdiction to review theNovember 2017 Board decision pursuantto 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1Vet.App. 23, 25-26 (1990).The Board’s determinationsof the appropriate degree of disability and the adequacy of a medical examination or opinion are findings of fact subject to the “clearly erroneous”standard of review set forth in 38 U.S.C. § 7261(a)(4). See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). “A factual finding ‘is “clearly erroneous” when 4although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'”Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).As with any finding on a material issue of fact and law presented on the record, the Board must support its factualdeterminations with an adequate statement of reasons or bases that enables the claimant to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).III.

ANALYSIS

A. Service Connection for Left Ankle Disability

Mr. Stern argues that the Board erred in relying on the January 2015 examination in denying service connection for a left ankle disability because the examiner provided an inadequate rationale. Appellant’s Brief (Br.) at 20-23. The Secretary concedes that the examiner failed to consider the veteran’s lay statements regarding continuing symptoms since service. Secretary’s Br. at 11-12. The Court agrees.When the Secretary undertakes to provide a veteran with a VA medical examination or opinion, he must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). In general, a VA medical examination or opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion,” Monzingo v. Shinseki, 26Vet.App. 97, 105 (2012). See also Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must rest on correct facts and reasoned medical judgment so as [to] inform the Board on a medical question and facilitate the Board’s consideration and weighing of the report against any contrary reports.”); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] 5 medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”). The Court agrees with the Secretary that a new medical opinion is warranted to address the left ankle disability. See Secretary’s Br. at 11-12. The January 2015 examiner,after noting Mr. Stern’s report of “twisting his ankle since the military,” R. at 185, proceeded to opine that “there is no evidence of chronicity or continuity while on active duty,” R. at 182. In rendering this conclusion, however, the examiner failed to address the veteran’s competent lay statement and impermissibly provided a rationale based solely on a lack of objective evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006)(finding medical opinions inadequate due to the examiner’s reliance solely on the absence of objective documentation without consideration of a claimant’s lay statements); Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007) (same).Therefore, remand is warranted for the Board to obtain an adequate medical opinion addressing service connection for left ankle disability. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the record is inadequate).

B. Increased Evaluation for Lumbosacral Strain

Mr. Sternargues that the Board clearly erred in relying on the March 2008, April 2009, January 2015, and April 2017 VA examinations to deny an increased lumbosacral strain evaluationbecause those examinations were inadequate. Appellant’s Br. at 10-19. Specifically, he contends that the examinersfailed to adequately address functional loss due to pain on flare-ups andto comply with the Court’s holding in Sharp v. Shulkin, 29 Vet.App. 26 (2017).Appellant’s Br. at 13-16; Reply Br. at 7-9. The Secretary argues that the Board provided adequate reasons or bases for relying on an adequate April 2017 VA examination and urges affirmance. Secretary’s Br. at 6-11.As relevant here, the General Rating Formula for Diseases and Injuries of the Spine provides a 20% evaluation when there is evidence of, inter alia, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a (2019).A 40% evaluation is warranted for, inter alia, forward flexion of the thoracolumbar spine 30 degrees or less,or favorable ankylosis of the entire thoracolumbar spine.Id. A 50% evaluation requires evidence of unfavorable ankylosis of 6the entire thoracolumbar spine, and a 100% evaluation requires evidence of unfavorableankyloses of the entire spine.Id. However, aveteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule wherethere is evidence that his or her disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’—including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.”Lyles v. Shulkin, 29 Vet.App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp, 29 Vet.App. at 31-32; Mitchell v. Shinseki, 25Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8Vet.App. 202, 205-07 (1995). In particular, a VA joints examination that fails to take intoaccount the factors listed in §§4.40 and 4.45, including those experienced during flare-ups, isinadequate for evaluation purposes.DeLuca, 8 Vet.App. at 206-07. For an examination not conducted during a flare-up to comply with §4.40, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veteran and offer aflare opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the veteran. Sharp, 29Vet.App. at 34-35. The examiner’s determination in that regard”should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due topain on use or during flare-ups.”DeLuca, 8Vet.App.at 206(emphasis added)(internal quotation marks and alteration omitted). When an examiner states that he or she cannot offer a flare opinion without resort to speculation, that opinion is adequate only when it is “clear that [it] is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” Sharp, 29Vet.App. at 36 (quoting Jones v. Shinseki, 23 Vet.App. 382,390 (2010)). Contrary to the Secretary’s arguments,the Court concludes that the VA examinations are inadequate for evaluation purposes. In the April 2017 VA examination, the examiner described Mr. Stern’s current symptoms as “constant low back painand intermittent back spasms” and noted that the veteranreported “severe” weekly flare-ups lasting from 30 minutes to hours which he described as “muscle spasms and stiffness in the morning [e]specially in cold weather.” R. at 794. The examiner further noted the examination was not conducted during a flare-up, concludedin

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